Headnotes

to the Judgment of the Second Senate of 26 October 2022

- 2 BvE 3/15 -

- 2 BvE 7/15 -

EUNAVFOR MED

1. The Federal Government’s duty to notify Parliament comprehensively and as early as possible under Art. 23(2) second sentence of the Basic Law extends to measures in the domains of the Common Foreign and Security Policy (CFSP) and the Common Security and Defence Policy (CSDP).

2. Notification must be provided to the entire Bundestag , i.e. all its members. It primarily falls to the Bundestag to ensure that the information provided is used effectively in the parliamentary opinion-forming process.

3. Providing the Bundestag with classified information, which is then subject to the Bundestag Rules on Document Security, does in principle not fulfil the Government’s duty under Art. 23(2) second sentence of the Basic Law, given that the provision of information to Parliament also serves to give effect to the principle that parliamentary processes are open to the public, which forms part of the principle of democracy.

4. Limitations to the Federal Government’s duty to provide information under Art. 23(2) second sentence of the Basic Law may arise from the requirement to protect the core of autonomous executive decision-making or from the requirement to protect security interests of the state. In principle, the Federal Government cannot invoke the confidential nature of the information in question as grounds for refraining from sharing information with the Bundestag . If the Federal Government intends not to provide some or all of the required information on the grounds of such limitations, it must notify the Bundestag of its decision to invoke these limitations and must set out the reasons why the Government is refraining from doing so.

FEDERAL CONSTITUTIONAL COURT

- 2 BvE 3/15 -

- 2 BvE 7/15 -

IN THE NAME OF THE PEOPLE

In the proceedings

- 2 BvE 3/15 -

- 2 BvE 7/15 -

the Federal Constitutional Court – Second Senate –

with the participation of Justices

Vice-President König,

Huber,

Hermanns,

Müller,

Kessal-Wulf,

Langenfeld,

Wallrabenstein

held on the basis of the oral hearing of 14 June 2022:

Judgment:

1. The proceedings 2 BvE 3/15 and 2 BvE 7/15 are combined for joint decision.

2. The respondent violated the German Bundestag ’s right under Article 23(2) second sentence of the Basic Law (Grundgesetz ) by failing to

1. provide the Bundestag , at the earliest possible time before the Council of the European Union adopted its decision regarding the EUNAVFOR MED military operation on 18 May 2015, with the draft of a crisis management concept for an operation in the framework of the Common Security and Defence Policy aimed at disrupting the business model of migrant smugglers and human traffickers in the Southern Central Mediterranean,

2. plausibly demonstrate that the letter from Turkish Prime Minister Davutoǧlu of 23 September 2015 to the Federal Chancellor did not relate to matters concerning the European Union within the meaning of Article 23(2) of the Basic Law or that there were constitutional reasons for not sharing its contents with the Bundestag .

3. Applications nos. 1 and 2 in proceedings 2 BvE 7/15 are rejected.

4. The application of applicant no. II to join proceedings 2 BvE 3/15 is inadmissible.

R e a s o n s:

A.

In their applications in Organstreit proceedings, applicants nos. I and II assert that the Federal Government violated the participation rights of the German Bundestag following from Art. 23(2) second sentence of the Basic Law (Grundgesetz – GG). They claim that the Federal Government failed to share with the German Bundestag , as early as possible, the complete draft of a crisis management concept that had been created in preparation of an operation to be undertaken in the framework of the Common Security and Defence Policy (CSDP) against human traffickers in the Mediterranean. In addition, applicant no. II challenges the fact that the Federal Government failed to share with the Bundestag a letter from the Turkish Prime Minister to the Federal Chancellor, while also failing to demonstrate that the letter did not relate to matters concerning the European Union.

I.

1. Following a special meeting of the European Council on 23 April 2015, the Council announced in a statement that it would strengthen the European Union’s presence at sea. The Council also committed to fighting traffickers in accordance with international law. […] The European Union’s High Representative for Foreign Affairs and Security Policy was asked to immediately begin preparations for a possible Common Security and Defence Policy operation to this effect (cf. European Council, Statement following the Special Meeting on 23 April 2015, EUCO 18/15).

The High Representative thereupon prepared a crisis management concept. According to the uncontested submissions of the applicants, the Federal Government – the respondent in these proceedings – had received a draft of this concept by 30 April 2015. On 6 May 2015, the Committee of Permanent Representatives of the Governments of the Member States dealt with this draft. On 13 May 2015, the European Commission put forward a comprehensive concept in the form of the ‘European Agenda on Migration’. […]

On 18 May 2015, the Council of the European Union adopted […] Decision (CFSP) 2015/778 on a European Union military operation in the Southern Central Mediterranean. The Decision provides that the operation is to be conducted in accordance with the political, strategic and politico-military objectives set out in the crisis management concept approved by the Council on 18 May 2015 (cf. European Union Naval Force Mediterranean Sea – EUNAVFOR MED, OJ EU L 122 of 19 May 2015, p. 31).

On 22 June 2015, the first of three phases of the EUNAVFOR MED operation was launched (cf. Council Decision <CFSP> 2015/972 of 22 June 2015 <OJ EU L 157 of 23 June 2015>, p. 51). On 16 September 2015, the Federal Government consulted the Bundestag on Germany’s participation in the operation and requested its approval for the deployment of the German navy (cf. Bundestagsdrucksache , Bundestag document – BTDrucks 18/6013). On 1 October 2015, the Bundestag gave its consent with 449 of 568 votes (cf. Plenary minutes of the Bundestag , Plenarprotokoll des Bundestags – BTPlenarprotokoll 18/127, p. 12346). The Federal Government cited Art. 24(2) GG as the legal basis of the operation (cf. BTDrucks 18/8878, p. 1; 18/12491, p. 1). The operation was renamed ‘EUNAVFOR MED Operation SOPHIA’ with effect from 26 October 2015 (cf. Art. 1 of Council Decision <CFSP> 2015/1926 of 26 October 2015, OJ EU L 281 of 27 October 2015, p. 13). The last extension of the mandate for the operation by the Bundestag, until 30 June 2019, occurred on 14 June 2018 (cf. BTPlenarprotokoll 19/39, p. 3786). The deployment has since ended.

2. a) On 4 May 2015, member of the Bundestag Dr. Brantner (BÜNDNIS 90/DIE GRÜNEN ) requested the crisis management concept from Bundestag Division PE 5 (European Affairs/Documentation), but did not receive it. On 11 May 2015, member of the Bundestag Dr. Schmidt (BÜNDNIS 90/DIE GRÜNEN ) likewise requested that the crisis management concept be forwarded, initially through Bundestag Division PE 5 and on 12 May 2015 directly through the Foreign Office. On the same day, the Foreign Office advised that it was not able to forward the crisis management concept, which was still only a draft. According to the Foreign Office, the concept was “pure Common Security and Defence Policy”, and not a document of fundamental importance. On 13 May 2015, Bundestag Division PE 5 told member of the Bundestag Dr. Schmidt that, according to the latest information from the Foreign Office, the crisis management concept would not be forwarded until it had been adopted in the Council. On 13 May 2015, member of the Bundestag Trittin (BÜNDNIS 90/DIE GRÜNEN ) also requested the crisis management concept from Bundestag Division PE 5, but did not receive it.

On 15 May 2015, the Foreign Office stated, in response to a written question by member of the Bundestag Amtsberg (BÜNDNIS 90/DIE GRÜNEN ), that the possibility of a Common Security and Defence Policy (CSDP) operation was being examined in the bodies of the European Union on the basis of the Decision of the European Council of 23 April 2015. A decision on specific German participation could only be made once the European Union had adopted a formal decision to launch such an operation and the parameters were clear.

On 21 May 2015, the Foreign Office informed the Bundestag ’s Office for Document Security (Geheimschutzstelle ) that only members of the Foreign Affairs Committee, the Defence Committee and the European Union Affairs Committee could be granted access to the crisis management concept. The Foreign Office stated that the concept was not going to be shared on the basis of the Act on Cooperation Between the Federal Government and the German Bundestag in Matters Concerning the European Union (Gesetz über die Zusammenarbeit von Bundesregierung und Deutschem Bundestag in Angelegenheiten der Europäischen Union – EUZBBG) so as not to set a precedent. Access was later also granted, at the Document Security Office, to members of the Internal Affairs Committee, the Legal Affairs and Consumer Protection Committee, the Human Rights and Humanitarian Aid Committee, and the Economic Cooperation and Development Committee.

On 24 June 2015, following a written question from member of the Bundestag Dr. Schmidt (BÜNDNIS 90/DIE GRÜNEN ), the Foreign Office’s Minister of State for Europe stated that the Federal Government had forwarded the crisis management concept to the responsible committee as well as to the other parliamentary committees participating in the deliberations after the Foreign Affairs Council had adopted it, while emphasising that this did not amount to a recognition of a legal duty to do so. He added that no obligation on the part of the Federal Government to forward said concept arose from the Act on Cooperation Between the Federal Government and the German Bundestag in Matters Concerning the European Union.

b) […]

3. According to a newspaper article of 25 September 2015, Turkish Prime Minister Davutoǧlu sent a letter to all the then 28 heads of state and government of the European Union. This letter reportedly addressed questions relating to migration, the Common Foreign and Security Policy (CFSP), the foreign policy dimension of refugee policy, the cooperation of the EU with third countries and countries of origin, and the linking of the EU-Turkey migration agenda to the accession process and migration policy.

On 1 October 2015, applicant no. II requested this letter […] from the Bundestag administration. On the same day, Bundestag Division PE 5 asked the Federal Government to forward said letter. On 5 October 2015, the Division ‘Federal Government European Policy Coordination/European Council’ of the Federal Chancellery informed Bundestag Division PE 5 that the letter of 23 September 2015 was a letter personally addressed to the Federal Chancellor by the head of government of a third country, and that the Federal Chancellor’s correspondence with other heads of government was generally not information that was shared with the Bundestag since considerable adverse effects would arise for the proper functioning of the Federal Government if such information were to be shared.

On 9 October 2015, Bundestag Division PE 5 sent another request for the letter to the Federal Chancellery. The Bundestag Division stated that the letter fell within the scope of the Act on Cooperation Between the Federal Government and the German Bundestag in Matters Concerning the European Union given that its contents concerned a key point of the European Agenda on Migration; in this respect, it was incumbent upon the Federal Government to provide information to the Bundestag . […]

On 16 October 2015, the Federal Chancellery’s Division ‘Federal Government European Policy Coordination/European Council’ again refused to forward the letter. […]

On 24 November 2015, the Foreign Office submitted to Bundestag Division PE 5 and the office of the Committee on European Union Affairs a preliminary version of an invitation sent by then Council President Tusk to the heads of state and government to a summit planned for November. Thereupon, Bundestag Division PE 5 requested on 25 November 2015 that the Federal Chancellery send the agenda and the preliminary report for the summit. The Federal Chancellery did not grant the request, but pointed out to Bundestag Division PE 5 on 27 November 2015 that the summit was a meeting of the heads of state and government with Turkey, rather than a European Council meeting.

Prior to this summit, applicant no. II […] also asked that Bundestag Division PE 5 forward the “Federal Government’s preliminary report on the upcoming EU-Turkey summit”. Bundestag Division PE 5 told applicant no. II on 27 November 2015 that the meeting was, in the Federal Government’s view, not a European Council meeting, but a summit with a third country and that the Bundestag would therefore in all likelihood not be notified as provided for in § 4(4) EUZBBG.

The summit of the EU heads of state and government with Turkey took place on 29 November 2015. At the summit, the EU-Turkey Joint Action Plan to respond to the influx of refugees, agreed ad referendum on 15 October 2015, was activated (cf. European Council, Conclusions of the meeting on 15 October 2015, EUCO 26/15, p. 1; European Commission, Fact sheet, MEMO/15/5860). The aim of the Joint Action Plan was to step up cooperation for the support of Syrians under temporary protection and their host communities in Turkey and to strengthen cooperation to prevent irregular migration flows to the European Union (cf. European Commission, EU-Turkey Joint Action Plan – Implementation Report, COM <2016> 85 final – Annex 1, p. 2; EU-Turkey Joint Action Plan – Third Implementation Report, COM<2016> 144 final, p. 2). […]

II.

[…]

III.

In the oral hearing held on 14 June 2022, the parties to the proceedings specified their submissions and made additions. Applicant no. II clarified the timelines for points 2 and 3 of its application, amending its application to declare that rights were violated “at least until 16 December 2015”.

The respondent cast doubt on the assertion of applicant no. II that it had requested the crisis management concept before the Council adopted its decision on 18 May 2015. Following the oral hearing, applicant no. II provided proof of said requests.

[…]

B.

The application of applicant no. I and point 3 of the application lodged by applicant no. II are admissible (see I. below). Points 1 and 2 of the application lodged by applicant no. II are inadmissible (see II. below). The subsidiary application of applicant no. II, in which it declares its intent to join the Organstreit proceedings of applicant no. I, is also inadmissible (see III. below).

I.

The application lodged by applicant no. I and point 3 of the application lodged by applicant no. II are admissible pursuant to Art. 93(1) no. 1 GG and §§ 63 f. of the Federal Constitutional Court Act (Bundesverfassungsgerichtsgesetz – BVerfGG). In particular, the applicants have the necessary legal interest in bringing proceedings.

In principle, an application in Organstreit proceedings is not inadmissible merely because the asserted rights violation is in the past and has already been concluded (cf. Decisions of the Federal Constitutional Court, Entscheidungen des Bundesverfassungsgerichts – BVerfGE 1, 372 <379>; 10, 4 <11>; 49, 70 <77>; 121, 135 <152>; 131, 152 <193>; 140, 115 <146 para. 81>; 148, 11 <22 para. 35>).

Even if a special interest in the continuation of proceedings seeking a declaratory finding in relation to the asserted rights violation were required in such cases, this requirement would be met in the present case: the applicant has an objective interest in clarification [of the applicable constitutional rights and duties] given the risk that the asserted violation could be repeated (cf. BVerfGE 121, 135 <152>; 131, 152 <194>; 137, 185 <230 para. 127>; 140, 115 <146 para. 81>; 148, 11 <22 para. 35>). The scope of the duty to provide information to the Bundestag under Art. 23(2) second sentence GG remains unclear and is disputed between the parties. The Second Senate of the Federal Constitutional Court has not yet decided whether measures taken under the Common Foreign and Security Policy and the Common Security and Defence Policy are covered by Art. 23(2) GG (cf. BVerfGE 131, 152 <202>). […]

II.

Points 1 and 2 of the application of applicant no. II were not lodged within the statutory time limit and are therefore inadmissible. Pursuant to § 64(3) BVerfGG, an application must be filed within six months of the applicant gaining knowledge of the contested act or omission. The time limit for lodging an application only starts once a violation has been established with sufficient certainty or once it is clear that the respondent refuses to take measures that the applicant considers necessary for safeguarding rights arising from the applicant’s constitutional status (cf. BVerfGE 92, 80 <89>; 103, 164 <170 f.>; 107, 286 <297>; 114, 107 <118>; 131, 152 <191>).

The respondent only forwarded the crisis management concept to the Bundestag on 21 May 2015. It was initially only available to members of the Foreign Affairs Committee, the Defence Committee and the European Union Affairs Committee – committees on which applicant no. II also had members. At least from this date, applicant no. II knew that the Federal Government had not notified the Bundestag “as early as possible” in accordance with Art. 23(2) second sentence GG, contrary to what the applicant deemed necessary. It is therefore irrelevant whether the applicant’s rights continued to be violated by the fact that the information was only shared in part and in a classified manner; it is also irrelevant that the Foreign Office’s Minister of State for Europe had ruled out a change in the government’s information policy on 24 June 2015. The period in which an application could be lodged under § 64(3) BVerfGG had therefore expired when the Federal Constitutional Court received the application lodged by applicant no. II on 22 December 2015.

III.

[…]

C.

Based on the broad understanding of Art. 23(2) second sentence GG required by the Constitution (see I. below), the application lodged by applicant no. I and point 3 of the application lodged by applicant no. II are admissible and well-founded. The respondent violated Art. 23(2) second sentence GG by failing to notify the German Bundestag comprehensively and as early as possible of the draft of the crisis management concept, which had been available to the respondent no later than 30 April 2015, and thus violated its duty to provide information. The respondent also violated the Bundestag ’s rights by failing to plausibly demonstrate that the letter from Turkish Prime Minister Davutoǧlu of 23 September 2015 did not fall within the scope of the duty to provide information under Art. 23(2) second sentence GG (see II. below).

I.

Art. 23(2) second sentence GG provides that, in matters concerning the European Union (see 1. below), the German Bundestag has a right to be notified that is in principle comprehensive (see 2. below). This right also encompasses measures in the domains of the Common Foreign and Security Policy and the Common Security and Defence Policy (see 3. below). Providing merely partial (see 4. below) or classified (see 5. below) information to the Bundestag is in principle not sufficient to give effect to the parliamentary right to be notified and must be justified on grounds of conflicting interests following from values enshrined in the Constitution (see 6. below). The Federal Government must expressly invoke such conflicting constitutional interests vis-à-vis the Bundestag (see 7. below).

1. In enacting Art. 23 GG, the Constitution-amending legislator restructured the traditional division of competences between the executive and the legislative branch with regard to decision-making powers for foreign affairs (see a) below) in relation to EU matters, granting the Bundestag far-reaching participation rights. The Federal Government’s duty to notify the Bundestag comprehensively and as early as possible, which is enshrined in Art. 23(2) second sentence GG, reflects the fact that responsibility for EU matters is shared jointly between the executive and legislative branches; it is also a prerequisite for the effective exercise of the Bundestag ’s participation rights. In order to fulfil this duty, the Federal Government must therefore meet the Bundestag ’s need for information in terms of substance, timing and form (see b) below).

a) In accordance with traditional doctrines of state theory, the Basic Law grants the Federal Government wide discretion for the autonomous exercise of its functions in foreign policy matters (cf. BVerfGE 104, 151 <207>; 131, 152 <195>). The role of Parliament in foreign policy matters is limited so as to ensure the proper exercise of state functions (Funktionsgerechtigkeit ) (cf. BVerfGE 104, 151 <207>). It is true that, according to Art. 59(2) first sentence GG, international treaties governing the political relations of the Federation or relating to subjects of federal legislation require the consent or participation, in the form of a federal law, of the bodies responsible in such a case for the enactment of federal legislation. However, maintaining relations with foreign states, representing the state in international organisations, intergovernmental bodies and systems of mutual collective security, as well as ensuring the overall state responsibility for the external representation of Germany, are generally tasks that fall to the executive, and in particular to the Federal Government. This is based on the consideration that, from an institutional perspective, it is generally only the Federal Government that permanently has the necessary personnel, resources and organisational structure to react swiftly and adequately to changing foreign policy situations and is therefore best suited to fulfil the state’s responsibility of dealing with foreign affairs (cf. BVerfGE 68, 1 <87>; 104, 151 <207>). A broader interpretation extending the Bundestag ’s rights of approval and of participation would unjustifiably curtail the Federal Republic of Germany’s capacity to act in matters of foreign and security policy; it would also result in a distribution of state powers that would not be conducive to the proper exercise of the respective state functions (cf. BVerfGE 90, 286 <363>; 104, 151 <207>; 131, 152 <195 f.>). Such an extensive interpretation can thus not be based on an all-encompassing requirement of a parliamentary decision (Parlamentsvorbehalt ) derived from the principle of democracy (cf. BVerfGE 49, 89 <124 ff.>; 68, 1 <87>; 131, 152 <196>; cf. also BVerfGE 150, 1 <99 para. 197>).

However, the powers entrusted to the Federal Government in foreign affairs are not beyond the reach of parliamentary scrutiny (cf. BVerfGE 68, 1 <89>; 90, 286 <364>; 104, 151 <207>). In foreign policy matters, too, the Bundestag can make use of its right to ask questions, to debate and to adopt decisions, exercise its powers of scrutiny and its budgetary powers and thereby influence the government’s decision-making, or bring down the Government by electing a new Chancellor (Art. 67(1) first sentence GG; BVerfGE 68, 1 <109 f.>; cf. also BVerfGE 104, 151 <208>). […]

b) That being said, Art. 23 GG has fundamentally modified how the tension between external representation by the executive Government and parliamentary responsibility is to be resolved (see aa) below), granting far-reaching participation rights to the Bundestag in relation to matters concerning the European Union, in response to the shift of powers to the executive in the context of European integration (see bb) below). The interpretation of Art. 23(2) first sentence GG must reflect these considerations (see cc) below).

aa) In matters concerning the European Union, Art. 23(2) first sentence GG makes the exercise of decision-making powers for foreign affairs subject to the participation of the Bundestag and the Bundesrat . A central mechanism for the Bundestag ’s participation – albeit not the only one – is the Federal Government’s obligation to provide the Bundestag with the opportunity to submit a statement before participating in legislative decision-making of the European Union (Art. 23(3) first sentence GG), and to take account of this statement in its negotiations (Art. 23(3) second sentence GG; cf. BVerfGE 131, 152 <196 f.>).

bb) In enacting Art. 23(2) to (6) GG, the Constitution-amending legislator responded to shifts in the national balance of powers arising from European integration. These shifts result from the fact that the transfer of sovereign powers to the European Union (Art. 23(1) second and third sentence GG) entails the transfer to the European Union of the competence to make law that is directly applicable at the domestic level and creates various rights and duties for Member State citizens, but at the same time, this law is primarily enacted by the executive branches of the Member States – via their membership of the European Council and the Council of the European Union –, rather than by national legislative bodies. The general political directions underlying EU law are defined by the European Council, which consists of the heads of state and government of the Member States, together with the President of the European Council and the President of the Commission (Art. 15 of the Treaty on European Union – TEU). Policy-making in various policy areas falls to the Council. It consists of representatives from the Member States at ministerial level (Art. 16(2) TEU). In principle, it acts by qualified majority (Art. 16(3) TEU) and is – jointly with the European Parliament – the central legislative body of the European Union (Art. 16(1) TEU). This poses particular challenges for parliamentary democracy at the national level because Parliament is in part deprived of its role as the central decision-making body (cf. BVerfGE 131, 152 <197>; 158, 51 <70 para. 66> – Financial aid for Greece – Federal Government’s duty to provide information to Parliament ).

In light of this, the loss of parliamentary powers in relation to the respective national government can be compensated, or at least mitigated (cf. BVerfGE 158, 51 <70 para. 66> – Financial aid for Greece – Federal Government’s duty to provide information to Parliament ), by ensuring a closer involvement of national parliaments in the process of European integration (cf. BVerfGE 131, 152 <197). In the deliberations on Art. 23 GG, such closer involvement of Parliament was considered a precondition for sufficient democratic legitimacy of supranational law-making ([…]). In the deliberations of the Joint Constitutional Review Commission of the Bundestag and the Bundesrat , members of the commission called for a duty to be imposed on the Federal Government to provide comprehensive notification to Parliament as early as possible so as to (at least) provide the Bundestag and the Bundesrat with the opportunity to influence the Federal Government’s participation in EU projects (cf. BVerfGE 131, 152 <197 f.> […]).

Greater involvement of the Bundestag in matters concerning the European Union by way of far-reaching information and participation rights is also encouraged by the institutional structure of the EU, which assigns a role to national parliaments that goes beyond the individual Member State, with the intention of utilising the democratic potential of national parliaments within the EU (cf. Art. 12 TEU; Protocol on the role of national parliaments in the European Union; Protocol on the application of the principles of subsidiarity and proportionality; BVerfGE 131, 152 <198>). In this respect, Art. 23 GG corresponds with Art. 12 TEU.

cc) The interpretation of Art. 23(2) first sentence GG must reflect these aims by way of a broad understanding of the term ‘matters concerning the European Union’.

(1) The wording of Art. 23(2) first sentence GG suggests such a broad understanding. The term ‘matters concerning the European Union’ is comprehensive and not limited to specific policy areas. Matters concerning the European Union include Treaty changes and corresponding amendments of primary law (Art. 23(1) GG, cf. also § 2 ff. of the Act on the Bundestag ’s and the Bundesrat ’s Responsibility With Regard To European Integration, Integrationsverantwortungsgesetz – IntVG) as well as legislative acts of the European Union (Art. 23(3) GG). However, the term’s contents are not limited to these elements (cf. BVerfGE 131, 152 <199>).

According to the Federal Constitutional Court’s established case-law, international treaties also form part of matters concerning the European Union if they supplement or are otherwise closely aligned with EU law (cf. BVerfGE 131, 152 <199>; 153, 74 <146 para. 124> – Unified Patent Court ; 158, 51 <71 para. 67> – Financial aid for Greece – Federal Government’s duty to provide information to Parliament ), regardless of whether they are directed at a formal change of the treaty foundations of the European Union (Art. 23(1) third sentence GG). In what cases a treaty can be regarded as supplementing or being otherwise closely aligned with EU law cannot generally be determined by one single criterion (cf. also the technique of listing examples in § 3 EUZBBG). Rather, such a determination requires an overall assessment, taking into account the relevant circumstances, including the contents, objectives and effects of the legal act in question, which can be decisive individually or in combination with one another, depending on their weight in a given case. Criteria that indicate close alignment with matters concerning the European Union include that the envisaged coordination on the basis of international law is rooted in primary EU law; that a project is to be implemented through secondary or tertiary law provisions; and other grounds that establish a qualified substantive link to the EU’s integration agenda (Integrationsprogramm ). Other relevant criteria include whether EU institutions are the driving force behind the project in question or are to be involved in its realisation – e.g. if it is envisaged that the EU will lend its institutions as ‘commissioned administrative agents’ (Organleihe ) to carry out functions of the newly established organisation –, or if the project in question comprises an international treaty that is concluded exclusively between EU Member States. In particular, a project will be deemed to have a qualified substantive link to the EU’s integration agenda such that it can be regarded as supplementing or being closely aligned with that agenda (cf. also § 4(4) no. 1 EUZBBG) if its pursued purpose results from the interaction of different policy areas, or if the parties involved opted to coordinate the project on the basis of international law precisely because previous initiatives to create a legal framework set out directly in EU primary law failed to secure the necessary majorities (cf. BVerfGE 131, 152 <199 f.>; 153, 74 <146 f. para. 124 f.> - Unified Patent Court ). Art. 23(2) GG also encompasses the development of international treaties and political initiatives if these have substantial links to the integration agenda laid down in the Treaties (cf. BVerfGE 131, 152 <201>).

(2) Systematic aspects confirm this view. Art. 23(1) first sentence GG speaks of the development of the European Union with a view to establishing a united Europe, which determines the purpose and aim of the entire provision. If large parts of the dynamic and diverse process of EU integration were from the outset excluded from parliamentary participation rights, it would contradict that purpose and aim (BVerfGE 131, 152 <200>).

(3) The notion of compensation that was pervasive in the deliberations of the Joint Constitutional Review Commission also suggests a broad understanding of the provision. The involvement of the Bundestag and the Bundesrat is designed to ensure that, in addition to their responsibility for the transfer of sovereign powers to the EU pursuant to Art. 23(1) GG, these two organs can also participate in the implementation of the EU integration agenda. The aim of Art. 23(2) GG is therefore to give the Bundestag and the Bundesrat sufficient time to decide if and, as the case may be, how they wish to participate in the national opinion-forming process. This question does not just arise with regard to participation in law-making within the meaning of Art. 288 ff. of the Treaty on the Functioning of the European Union (TFEU), but also with regard to other initiatives and proposals that are significant for the development of the EU and the implementation of its integration agenda.

In addition to its compensatory function, Art. 23(2) GG is designed to allow the Bundestag and the Bundesrat to accompany the implementation of the EU integration agenda as effectively as possible and to fulfil their responsibility with regard to European integration (Integrationsverantwortung ) rooted in Art. 23(1) GG (cf. BVerfGE 123, 267 <351>; 134, 366 <394 f. para. 47 f.>; 142, 123 <211 para. 170>). In order to pursue their own European policy agenda or decide whether to bring an action challenging a possible infringement of the principle of subsidiarity under Art. 23(1a) GG, it is necessary that the Bundestag and the Bundesrat receive information as early as possible to ensure that the information they possess is essentially equal to the government’s information.

(4) Legislative history also suggests a broad interpretation of the term ‘matters concerning the European Union’. Art. 23(2) GG was inserted into the Basic Law in the context of ratification of the Maastricht Treaty. This Treaty combined the supranational European Communities, which had already existed for 30 years at the time, with the Common Foreign and Security Policy and the Common Justice and Home Affairs Policy, two policy areas that had until then been part of intergovernmental cooperation, placing them all under the umbrella of the European Union (BVerfGE 131, 152 <201>; cf. also BVerfGE 89, 155 <158 ff.>; […]). The legislator amending the Constitution in 1992 came from a concept of the European Union that differentiated the – merely supranational – European Communities from the intergovernmental areas. Given that, against this backdrop, the legislator tied the Bundestag ’s participation rights to matters concerning the European Union, it seems plausible that the legislator did not want to differentiate between the European Union’s different pillars. Rather, the legislator intended Art. 23(2) GG to extend to all EU projects that might be of interest to the Federal Republic of Germany or to the Bundestag (cf. BTDrucks 12/6000, p. 21; BVerfGE 131, 152 <202>; 158, 51 <72 para. 71> – Financial aid for Greece – Federal Government’s duty to provide information to Parliament ).

[…]

2. The types of information that must be provided to the Bundestag , the limitations of this obligation, and the manner in which any required information must be provided are aspects that must be determined in light of the purpose of Art. 23(2) second sentence GG, which is to allow the Bundestag to effectively exercise its participation rights in matters concerning the European Union while safeguarding the autonomy of the executive (see a) below). Pursuant to Art. 23(2) second sentence GG, the Federal Government must notify the Bundestag comprehensively and as early as possible, in a manner that is in line with the purpose of the provision (see b) below).

a) aa) The duty to provide notification is based on the Bundestag ’s participation rights in matters concerning the European Union, which is enshrined in Art. 23(2) first sentence GG. The Bundestag must be notified in such a way that it is afforded the opportunity to influence the Federal Government’s opinion-forming processes in a timely and effective manner. The Bundestag is only capable of accompanying and influencing the European integration process, including by debating the advantages and disadvantages of a matter and by preparing statements of position, if it has sufficient information as the basis for its decisions. In any case, the Bundestag ’s role must not be reduced to merely rubber-stamping the government’s actions after the fact (cf. BVerfGE 131, 152 <202 f.>; 158, 51 <71 f. para. 69> – Financial aid for Greece – Federal Government’s duty to provide information to Parliament ; cf. also BVerfGE 129, 124 <178 f.>; 130, 318 <344 f.>).

bb) The duty to provide notification following from Art. 23(2) second sentence GG also serves to offset information asymmetries between the Federal Government and the Bundestag , insofar as this is necessary to ensure that the Bundestag can effectively exercise its parliamentary rights. A narrow interpretation of the provision would be contrary to this purpose.

The legislative history of Art. 23(2) GG confirms these considerations. Before the new Art. 23 GG was inserted into the Basic Law, all the parliamentary groups represented in the German Bundestag called for parliamentary participation rights to be enshrined in the Basic Law with a view to allowing the Bundestag to influence decisions about European legislative acts at the national level before they were taken ([…]). Given that the Bundestag had often been presented with faits accomplis and had no choice but to accept decisions that had already been taken, the Joint Constitutional Review Commission proposed that the duty to provide information be laid down in Art. 23(2) second sentence GG. In this respect, there was broad agreement that sound policy formulation and responsible participation of the Bundestag would only be possible if the Bundestag received comprehensive information as early as possible (cf. BTDrucks 12/3896, p. 19; 12/6000, p. 21; […]).

Originally, it was envisaged that the executive should be bound by statements of position of the Bundestag . This was watered down to a duty to take into account such statements with regard to EU legislative acts (Art. 23(3) second sentence GG). To compensate for this considerably weaker rule, the Bundestag pushed through a stricter version of the duty to provide information ([…]). Thus, the Federal Government’s duty to provide information might seem excessive in relation to the Bundestag ’s participation rights set out in Art. 23(3) GG, but it reflects the specific purpose of the institutional structure, which is to guarantee effective participation of the Bundestag in matters concerning the European Union by ensuring its comprehensive notification, even though the Federal Government is not formally bound by statements of the Bundestag (cf. BVerfGE 131, 152 <203 f.>; […]).

cc) The duty to provide information does not just serve to enable the Bundestag to exercise its participation rights under Art. 23(2) first sentence GG and its responsibility with regard to European integration. It also ensures at the domestic level that the Bundestag can perform the tasks assigned to it by Art. 12 TEU and Arts. 1 and 2 of the Protocol on the role of national parliaments in the European Union and Art. 4 of the Protocol on the application of the principles of subsidiarity and proportionality (cf. BVerfGE 131, 152 <204>).

dd) Moreover, the interpretation and application of Art. 23(2) second sentence GG must reflect the fact that the notification of Parliament also serves to give effect to the principle that parliamentary processes are open to the public, which forms part of the principle of democracy (cf. BVerfGE 131, 152 <204>; 158, 51 <71 f. para. 70> – Financial aid for Greece – Federal Government’s duty to provide information to Parliament ). In principle, the German Bundestag makes decisions in its Plenary and following public deliberations. The public exchange of arguments and counter-arguments as well as public debate and discussion are essential elements of a democratic parliamentary system. It is precisely the degree of publicity in debates and decision-making guaranteed by the parliamentary process in accordance with Art. 42(1) first sentence GG that makes it possible to reconcile conflicting interests in a way that could not be achieved through a less transparent process (cf. BVerfGE 131, 152 <204 f.>). The parliamentary opinion-forming process can be followed by the general public, which, in the European context, strengthens the responsiveness of European decisions to the interests and beliefs of citizens. It is the public nature of deliberations that creates the conditions for public scrutiny (cf. BVerfGE 131, 152 <205>). This also applies where parliamentary deliberations concern decision-making processes, both when Parliament participates in and when it scrutinises such decision-making. Parliamentary accountability vis-à-vis citizens is one of the essential prerequisites allowing the people to effectively influence the exercise of state authority as required by Art. 20(2) second sentence GG (cf. BVerfGE 131, 152 <205>; cf. also BVerfGE 83, 60 <71 f.>; 93, 37 <66>).

Decisions that have considerable legal and factual implications for future legislative latitude must generally be preceded by a procedure that allows the public to form and express opinions and that requires Parliament to hold a public debate on the necessity and scope of the envisaged measures (cf. BVerfGE 131, 152 <205>; 158, 51 <72 para. 70> – Financial aid for Greece – Federal Government’s duty to provide information to Parliament ). In a system of intergovernmental governance, too, the German Bundestag must exercise its overall budgetary responsibility in accordance with these principles. It must be the organ that decides autonomously on revenue and expenditure, including with regard to international and European liabilities (BVerfGE 131, 152 <205 f.>; cf. also BVerfGE 129, 124 <178>; 130, 318 <344>; 132, 195 <239 f. para. 107>; 135, 317 <400 para. 162>; 142, 123 <230 para. 212>; 154, 17 <87 para. 104> – The ECB’s Public Sector Purchase Programme ; 157, 332 <381 para. 85> – Act Ratifying the EU Own Resources Decision – Preliminary injunction ; 158, 51 <72 para. 70> – Financial aid for Greece – Federal Government’s duty to provide information to Parliament ). The principle that budgetary decision-making is open to the public is a manifestation of the general principle of publicity in democracy (cf. BVerfGE 70, 324 <358>; 131, 152 <206>).

b) In substantive terms, the information provided to the Bundestag under Art. 23(2) second sentence GG must be comprehensive (see aa) below). In terms of timing, it must be provided as early as possible (see bb) below). The manner in which it is provided must be in line with the purpose of the provision (see cc) below).

aa) The requirement that the information provided to the Bundestag must be comprehensive serves to enable the Bundestag to effectively exercise its participation rights. The more complex a matter is, the more it affects the sphere of parliamentary responsibility, and the closer a matter comes to reaching a formal decision or agreement, the greater is the Government’s duty to notify the Bundestag . Specific requirements therefore arise regarding the quality, quantity and timeliness of notification, in consideration of the limits following from the principle of the separation of powers (cf. BVerfGE 131, 152 <207>; 158, 51 <72 para. 72> – Financial aid for Greece – Federal Government’s duty to provide information to Parliament ).

(1) In qualitative terms, the duty to provide comprehensive notification encompasses information on initiatives and positions adopted by the Federal Government. Moreover, this duty extends to the sharing of official documents received from institutions, bodies, offices and agencies of the European Union, and from other Member States, relating to matters concerning the European Union. However, it is not limited to the sharing of such documents. As soon and insofar as the Federal Government itself is engaged in a particular matter, its duty to notify the Bundestag may extend to other information available to the Government, including information on informal activities or information not (yet) documented in writing. Formal documentation notwithstanding, the duty to notify the Bundestag may also concern the subject matter, progress and outcome of meetings and deliberations held by EU institutions and bodies in which the Federal Government is represented (cf. BVerfGE 131, 152 <207>; 158, 51 <73 para. 73> – Financial aid for Greece – Federal Government’s duty to provide information to Parliament ).

In view of the purpose of the duty to provide notification, it is irrelevant whether the Federal Government has obtained the information in question through official channels or in other ways. Moreover, it does not matter whether the documents come from institutions, bodies, offices and agencies of the EU or from other Member States. The potentially confidential nature of the information in question (cf., e.g., Art. 6 of the Council’s Rules of Procedure, OJ EU L 325 of 11 December 2009, p. 35) cannot generally be invoked as grounds for refraining from sharing information with the Bundestag . Where interests of the state could be jeopardised by the disclosure of confidential information, the information can be provided in a manner that protects its confidentiality (cf. BVerfGE 124, 78 <123 f.>; 158, 51 <74 para. 78> – Financial aid for Greece – Federal Government’s duty to provide information to Parliament ). The Bundestag has created the necessary conditions to ensure protection of confidential information by enacting its Rules on Document Security (Geheimschutzordnung ) (cf. BVerfGE 67, 100 <135>; 70, 324 <359>; 77, 1 <48>; 130, 318 <362>; 158, 51 <75 para. 79> – Financial aid for Greece – Federal Government’s duty to provide information to Parliament ).

(2) Given the purpose of notification, the necessary volume and level of detail of the information to be provided to the Bundestag depend on the significance of the matter in question and the respective stage of the negotiations (cf. BVerfGE 131, 152 <208>). The Bundestag must be notified of all matters that are subject to its participation pursuant to Art. 23(2) first sentence GG, and must be provided with the information necessary for sound decision-making.

[…]

The required comprehensive notification is not limited to one-off notification – as is clear from the link to the requirement to provide notification as early as possible. Rather, the duty to notify the Bundestag is designed as a permanent and ongoing obligation to provide information, requiring an update each time new political or legal questions arise in the handling of a matter on which the Bundestag has not yet formed an opinion (cf. BVerfGE 131, 152 <209>; 158, 51 <73 para. 74> – Financial aid for Greece – Federal Government’s duty to provide information to Parliament ).

EU legislative acts and intergovernmental agreements are usually preceded by complex and lengthy coordination processes. Given that the Federal Government can only share information with the Bundestag that it actually and currently holds, the duty to provide comprehensive notification must be understood as dynamic rather than static. The Federal Government’s knowledge and views on a matter usually do not remain the same, but change over time. The more specific a project becomes, the more information the Federal Government typically obtains. Every time the Federal Government gains more insights, information asymmetries arise in relation to the Bundestag . These must in principle be offset so as to not vitiate the constitutional requirement of “comprehensive” notification. The more complex and significant the matter in question is and the closer it comes to reaching a formal decision or agreement, the greater is this obligation to offset information asymmetries between the Federal Government and the Bundestag (cf. BVerfGE 131, 152 <209 f.>; 158, 51 <73 para. 74> – Financial aid for Greece – Federal Government’s duty to provide information to Parliament ).

bb) The strict requirements regarding the timing of notification set out in Art. 23(2) second sentence GG (“as early as possible”) also serve to ensure that the Bundestag is able to effectively exercise its participation rights in matters concerning the European Union.

(1) In terms of legislative history, the strict requirements regarding timing are a deliberate break with Art. 2 of the Act of Approval of the Treaties of Rome of 27 July 1957 (cf. Federal Law Gazette, Bundesgesetzblatt – BGBl II p. 753), which merely provided for the ongoing notification of the Bundestag and merely recommended notification prior to decision-making in the Council. On the basis of that provision, the Bundestag had frequently only received information after decision-making in the Council, and thus later than the Bundesrat or the German members of the European Parliament ([…]). In light of this, the phrases “notification in due time” and “regular notification”, which had been discussed by the Joint Constitutional Review Commission and by the Special Committee on Affairs of the European Union, were rejected. They found that requiring regular notification does not sufficiently ensure that the Bundestag receives relevant information as early as possible ([…]). Moreover, the members of the Joint Constitutional Review Commission considered the term “in due time” to be too unspecific since it leaves much room for interpretation and ultimately lets the Federal Government choose the time of notification. They argued that providing comprehensive information as early as possible was vital to allow for sound policy formulation in the Bundestag ([…]).

(2) The timing of notification is as significant as its scope. The Bundestag can only influence decision-making in matters concerning the European Union, which generally involves multiple actors, if it has early knowledge of relevant proposals. In light of this, the phrase “as early as possible” laid down in Art. 23(2) second sentence GG must be interpreted in such a way that the Bundestag must receive the Federal Government’s information at the latest at a time that allows the Bundestag to properly address the matter in question and to work on adopting a position before the Federal Government issues binding declarations with external effect, in particular binding declarations on EU legislative acts and intergovernmental agreements. This precludes the Federal Government from launching specific initiatives or participating in decision-making without prior involvement of the Bundestag , and requires that all documents be shared with the Bundestag as soon as they are addressed in negotiations (cf. BVerfGE 131, 152 <212>; 158, 51 <78 f. para. 86> – Financial aid for Greece – Federal Government’s duty to provide information to Parliament ).

(3) Therefore, official documents, reports and communications as well as any unofficial information must be shared with the Bundestag as soon as they enter the Federal Government’s sphere of influence. The Federal Government has no discretion with regard to the timing of such information sharing. Delays in forwarding information to the Bundestag are only permissible to allow the Federal Government to determine whether the requirements of Art. 23(2) second sentence GG are met. The Bundestag must be notified in advance, and in sufficient time, of meetings of EU institutions and informal deliberations in which the Federal Government participates – even if there is no formal proposal or other basis for deliberation yet – so that the Bundestag can form its own opinion on the subject matter of said meetings and influence the Federal Government’s negotiating position and voting behaviour. The Bundestag must be notified directly after the deliberations of their progress and the interim and final results achieved. The same applies to the requirement of continually updating the information provided to the Bundestag (cf. BVerfGE 131, 152 <212 f.>; 158, 51 <79 para. 87> – Financial aid for Greece – Federal Government’s duty to provide information to Parliament ).

cc) (1) In principle, notification pursuant to Art. 23(2) second sentence GG must be provided to the entire Bundestag . This serves to ensure that all members of Parliament can equally access the shared information. Yet it primarily falls to the Bundestag to ensure that the information provided is used effectively in the parliamentary opinion-forming process. In particular, it is for the Bundestag to decide the extent to which it authorises the Committee on European Union Affairs, pursuant to Art. 45 second sentence GG, to exercise parliamentary rights under Art. 23 GG vis-à-vis the Federal Government on behalf of the Bundestag . Providing “unofficial” information to individual committees, members of Parliament, parliamentary groups or their spokespersons on the committees is not sufficient to give effect to the rights of the Bundestag under Art. 23(2) second sentence GG (cf. BVerfGE 131, 152 <213 f.>).

(2) Moreover, procedural requirements and requirements regarding the form of notification follow from the purpose underpinning Art. 23(2) second sentence GG. In principle, Art. 23(2) second sentence GG requires that the Federal Government provide notification in writing. While written notification is not expressly provided for in Art. 23(2) second sentence GG, providing written rather than oral notification appears to be preferable in order to inform the Bundestag effectively, given the requirements regarding clarity, continuity and reproducibility that must be fulfilled for a formal notification of Parliament. Providing oral information to the Plenary, to the Committee on European Union Affairs or to other committees in principle only serves to supplement and explain the information provided. Exceptions are only permissible, but under certain circumstances also necessary, within narrow limits, in particular to give effect to the requirement that notification be carried out as early as possible. Since Art. 23(2) second sentence GG requires that information asymmetries between the Government and Parliament be offset not only in the best possible way, but also as quickly as possible, there might be some scenarios in which the Federal Government can only ensure that information is provided comprehensively and as early as possible through oral notification. For instance, this is the case if no written documents exist on a given matter and if such documents cannot be provided or created in a reasonable time period, but the Bundestag must be notified so as to enable it to effectively exercise its participation rights. Similar considerations apply to the sharing of foreign-language documents. If the obstacle is overcome, the information deficit must be remedied without delay (cf. BVerfGE 131, 152 <214>; 158, 51 <79 f. para. 90 f.> – Financial aid for Greece – Federal Government’s duty to provide information to Parliament ).

3. The Federal Government’s duty to notify the Bundestag comprehensively and as early as possible also applies to measures in the domains of the Common Foreign and Security Policy (see a) below) and the Common Security and Defence Policy (see b) below). This applies irrespective of the constitutional requirement of a parliamentary decision regarding the deployment of the armed forces (wehrverfassungsrechtlicher Parlamentsvorbehalt ) (see c) below).

a) The EU’s competence in matters of the Common Foreign and Security Policy covers all areas of foreign policy and all questions relating to the EU’s security, including the progressive framing of a common defence policy that might lead to a common defence (Art. 24(1) subpara. 1 TEU). In this respect, Art. 21(3) subpara. 2 TEU calls for consistency between the Common Foreign and Security Policy and the Common Security and Defence Policy with supranational policy areas of the EU so as to devise comprehensive overall strategies. The Common Foreign and Security Policy has essentially been (and continues to be) an area of intergovernmental cooperation between the Member States (cf. Art. 24(1) subpara. 2 TEU; regarding the previous legal framework BVerfGE 89, 155 <176 f., 190>; cf. also BVerfGE 131, 152 <201>). In this domain, no transfer of sovereign powers within the meaning of Art. 23(1) second sentence GG has occurred.

aa) However, this special feature of the Common Foreign and Security Policy does not call into question that this policy area, which is set out in Art. 23 ff. TEU, forms part of the EU’s integration agenda. It is implemented by institutions, bodies, offices and agencies of the EU, its decisions are binding on the Member States (Art. 28(2) TEU) and take precedence over national law ([…]). The Member States are required to support the Common Foreign and Security Policy (Art. 24(3) TEU), and to uphold the EU’s positions at international level as well as to coordinate their actions (Arts. 32 and 34 TEU). With the creation of the High Representative for Foreign Affairs and Security Policy (Art. 18 TEU) and the European External Action Service (Art. 27(3) TEU), the Common Foreign and Security Policy received an institutional framework. Moreover, this policy area and other elements of the EU’s integration agenda are interconnected in various ways – as was intended by the authors of the Treaties. […] The Common Foreign and Security Policy is guided by common principles and values (Arts. 3(5) and 21 TEU), it is based on common strategic interests, principles and aims (Arts. 21 and 22 TEU) and seeks an ever-increasing degree of convergence of Member States’ actions (Art. 24(2) TEU). In light of this, the Common Foreign and Security Policy constitutes an EU policy in its own right and is an integral part of the EU legal order.

The Common Foreign and Security Policy amounts to a matter concerning the European Union within the meaning of Art. 23(2) GG, despite the fact that the other EU institutions, in particular the European Parliament, do not have a major role in defining and implementing the Common Foreign and Security Policy (cf. Art. 24(1) subpara. 2 fifth sentence TEU). The powers of the European Parliament with regard to the Common Foreign and Security Policy are very limited – unlike in other areas of the integration agenda (cf. CJEU, Judgment of 24 June 2014, Parliament/Council , C-658/11, EU:C:2014:2025, para. 84 ff.; Judgment of 14 June 2016, Parliament/Council , C-263/14, EU:C:2016:435, para. 68 ff.) and are essentially limited to consultation rights (Art. 27(3) fourth sentence, Art. 36 subpara. 1 first sentence, Art. 41(3) subpara. 1 second sentence TEU). Decisions are taken without its involvement, and unlike the Commission, it does not have a right to submit initiatives or a right of co-decision (Art. 30(1) TEU). However, there is an obligation to inform the European Parliament (Art. 36 subpara. 1 first and third sentence TEU) and to take into consideration its views (Art. 36 subpara. 1 second sentence TEU). The European Parliament may ask questions or make recommendations (Art. 36 subpara. 2 first sentence TEU) and hold debates (Art. 36 subpara. 2 second sentence TEU) with regard to the Common Foreign and Security Policy. In addition to these powers, the European Parliament may influence the Common Foreign and Security Policy by way of budgetary decisions and general resolutions ([…]). Still, democratic legitimation of the Common Foreign and Security Policy is primarily achieved through the Council and (indirectly) through national parliaments ([…]). It must also be taken into account that it is virtually impossible to compensate for the low level of democratic legitimation of the Common Foreign and Security Policy at the European level through judicial review (cf. in this regard BVerfGE 151, 202 <289 ff. para. 124 ff., 130> – European Banking Union ). Apart from two exceptions, the Court of Justice of the European Union has no jurisdiction in this area (Art. 24(1) subpara. 2 sixth sentence TEU; cf. CJEU, Judgment of 24 June 2014, Parliament/Council , C-658/11, EU:C:2014:2025, para. 69 f.; Judgment of 2 November 2015, Eulex Kosovo/Elitaliana , C-439/13 P, EU:C:2015:753, para. 43 ff.).

bb) Democratic legitimation and scrutiny is especially important for the Common Foreign and Security Policy – an area which is hard to regulate and is largely driven by political concerns and less so by factual considerations – in order to prevent the development of executive domains without any scrutiny. Given that the European Parliament only provides a low level of legitimacy, as set out above, such democratic legitimation and scrutiny primarily requires, in relation to the Federal Republic of Germany, effective participation rights of the Bundestag in respect of the Common Foreign and Security Policy, and, prior to such participation, information rights that are as comprehensive as possible.

§ 7(1) first sentence EUZBBG also confirms that matters of the Common Foreign and Security Policy fall within the scope of the duty to provide notification under Art. 23(2) second sentence GG (cf. BVerfGE 157, 1 <25 para. 77> – CETA – Organstreit I ), even though this statutory provision giving specific shape to Art. 23(2) first sentence GG does not have constitutive significance. […]

Finally, it would be contradictory if institutions established outside of the institutional framework of the European Union, such as the European Stability Mechanism or the Unified Patent Court, were considered in established case-law to be matters concerning the European Union within the meaning of Art. 23(2) GG (cf. BVerfGE 131, 152 <215 ff.>; 153, 74 <146 para. 123> – Unified Patent Court ), but the Common Foreign and Security Policy, which is comprehensively set out in the Treaty on European Union, were not considered to be a matter concerning the European Union.

b) The Common Security and Defence Policy is an “integral part” of the Common Foreign and Security Policy (Art. 42(1) first sentence TEU). Apart from the special provisions governing the Common Security and Defence Policy in Arts. 42 to 46 TEU, it is part of the same legal framework as the Common Foreign and Security Policy. Even though the Common Security and Defence Policy’s structure is intergovernmental, it is an essential part of the EU’s integration agenda. Thus, measures taken under the Common Security and Defence Policy are also matters concerning the European Union within the meaning of Art. 23(2) GG.

c) The constitutional requirements regarding foreign deployments of the Bundeswehr (Art. 24(2) or Art. 87a(3) GG) and the requirement of a parliamentary decision regarding the deployment of the armed forces (cf. BVerfGE 90, 286 <381 ff.>; 100, 266 <269>; 104, 151 <208>; 108, 34 <43>; 121, 135 <154>; 126, 55 <69 f.>; 140, 160 <187 para. 67>) are not affected by the Federal Government’s duty to notify the Bundestag comprehensively and as early as possible in relation to matters concerning the Common Security and Defence Policy since these requirements do not just serve to enable co-decision-making in matters concerning the European Union; rather, the Bundestag is the main decision-making body in this respect (cf. BVerfGE 90, 286 <381 f.>; 121, 135 <161>; 140, 160 <193 f. para. 82>).

4. The Federal Government’s duty under Art. 23(2) second sentence GG extends to the entire Bundestag and is only met if the information is freely accessible to all members of Parliament and thus to the public. The Bundestag generally exercises its representative function through all of its members as a whole (cf. BVerfGE 44, 308 <316>; 56, 396 <405>; 80, 188 <218>; 130, 318 <342>), not through individual members, groups of members or the parliamentary majority.

The Bundestag can only exercise its representative function through all of its members if they all have equal participation rights (cf. BVerfGE 44, 308 <316>; 56, 396 <405>; 130, 318 <342>). For that reason, each member of Parliament must be able to participate in the work of the Bundestag , its deliberations and decisions with rights and obligations that are in principle equal. The rights of the members of the Bundestag include the right to speak in Parliament (cf. BVerfGE 10, 4 <12>; 60, 374 <379>; 80, 188 <218>), the right to vote, the right of initiative and, above all, the right to participate in exercising the right to ask questions and the right to information (cf. BVerfGE 13, 123 <125>; 57, 1 <5>; 67, 100 <129>; 70, 324 <355>; 130, 318 <342>).

Notification must be provided to the entire Bundestag , i.e. all its members (cf. BVerfGE 131, 152 <213 f.>; 158, 51 <76 para. 81> – Financial aid for Greece – Federal Government’s duty to provide information to Parliament ). If access to relevant information is restricted to a certain group of Bundestag members, the duty to provide information has only been fulfilled to a limited extent.

5. Providing the Bundestag with classified information, which is then subject to the Bundestag Rules on Document Security, does in principle not meet the requirements of Art. 23(2) second sentence GG, given that the provision of information to Parliament also serves to give effect to the principle that parliamentary processes are open to the public, which forms part of the principle of democracy (see para. 87 f. above). Decisions of considerable significance must therefore generally be preceded by a process that allows the public to form and express opinions and that requires Parliament to hold a public debate on the necessity and scope of the envisaged measures (cf. BVerfGE 85, 386 <403 f.>; 95, 267 <307 f.>; 108, 282 <312>; 130, 318 <344>).

6. Limitations to the Federal Government’s duty to provide information under Art. 23(2) GG may arise from the requirement to protect the core of autonomous executive decision-making (Kernbereich exekutiver Eigenverantwortung ) (see a) below) or from the requirement to protect security interests of the state (see b) below).

a) The institutional structure established by the Basic Law rests on the presumption that there is a core in which the Government carries responsibility for autonomous executive decision-making, encompassing a sphere in which the Government is free to initiate, deliberate and take action – this sphere does not, in principle, have to be laid open (cf. BVerfGE 67, 100 <139>; 77, 1 <59>; 110, 199 <214>; 124, 78 <120>; 137, 185 <234 para. 136>; 143, 101 <137 para. 119>; 146, 1 <40 para. 89, 42 para. 92>; 147, 50 <138 para. 229>). It is beyond the reach of the Bundestag (cf. BVerfGE 137, 185 <234 para. 136>). This core must also be respected in the context of the duty to provide notification under Art. 23(2) GG (cf. BVerfGE 131, 152 <206>; 158, 51 <76 para. 82> – Financial aid for Greece – Federal Government’s duty to provide information to Parliament ).

The core of autonomous executive decision-making protects the process of internal governmental opinion-forming, both with regard to deliberations within the cabinet and the preparation of cabinet and ministerial decisions, which primarily takes place in intra- and inter-ministerial coordination processes (cf. BVerfGE 67, 100 <139>; 110, 199 <214, 222>; 124, 78 <120>; 131, 152 <206>; 137, 185 <234 para. 136>; 158, 51 <76 para. 82> – Financial aid for Greece – Federal Government’s duty to provide information to Parliament ). The Federal Government is not required to notify the Bundestag of the Government’s internal opinion-forming process (cf. BVerfGE 131, 152 <206>); it must only notify the Bundestag of the outcome of this process (cf. BVerfGE 137, 185 <234 f. para. 136 f.>). Position papers that have not been coordinated with other actors therefore do not fall within the scope of the duty to provide notification. In principle, only the outcome of the Federal Government’s internal opinion-forming process must be shared (cf. BVerfGE 131, 152 <206>; 137, 185 <234 f. para. 137>; 146, 1 <42 para. 93>; 147, 50 <139 para. 229>; 158, 51 <76 para. 82> – Financial aid for Greece – Federal Government’s duty to provide information to Parliament ). As long as the Federal Government’s internal opinion-forming processes have not reached conclusion, Parliament is not entitled to be notified (cf. BVerfGE 137, 185 <234 para. 136>; 158, 51 <76 f. para. 82> – Financial aid for Greece – Federal Government’s duty to provide information to Parliament ).

These processes typically also encompass discussions of negotiating positions and confidential communication with foreign heads of state and government conducted well in advance of EU decision-making. Insofar as the information thus obtained does not become part of the deliberation and decision-making process of the European Union, the Bundestag does not have to be notified of such information under Art. 23(2) second sentence GG in view of the provision’s purpose, which is to afford the Bundestag the opportunity to influence the Federal Government’s opinion-forming processes in a timely and effective manner (see para. 82 above). The Federal Government can thus meet legitimate expectations of confidentiality, enabling it to safeguard its capacity to act in matters of foreign and European policy and to preserve the standing and trust enjoyed by Germany within the international community (cf. in this regard, Federal Constitutional Court, Judgment of the Second Senate of 15 June 2022 - 2 BvE 4/20, 2 BvE 5/20 -, para. 104 ff. – The right of the Federal Chancellor to issue political statements ).

However, information no longer falls within the domain shielded from Parliament when the Federal Government has concluded its internal opinion-forming processes and then shares the results with the public or enters negotiations with third parties (cf. BVerfGE 131, 152 <210>; 158, 51 <76 para. 83> – Financial aid for Greece – Federal Government’s duty to provide information to Parliament ).

b) Limitations to the duty to provide information under Art. 23(2) second sentence GG may also arise from the requirement to protect security interests of the state. However, the Federal Government cannot generally argue that the resulting need to keep certain information confidential prevents it from sharing that information with the Bundestag (cf. BVerfGE 137, 185 <243 para. 150, 152>; 147, 50 <130 f. para. 205>; 158, 51 <74 para. 76> – Financial aid for Greece – Federal Government’s duty to provide information to Parliament ). Rather, this need must be accommodated by sharing such information in a manner that protects its confidentiality, in accordance with the Bundestag ’s Rules on Document Security (cf. BVerfGE 67, 100 <135>; 77, 1 <48>; 130, 318 <362>; 131, 152 <208, 223>; 143, 101 <142 f. para. 138 f.>; 146, 1 <43 para. 96>; 147, 50 <131 para. 206>; 156, 270 <299 f. para. 91 f.> – Amri committee of inquiry <naming of confidential informant’s handler> ; 158, 51 <75 para. 79> – Financial aid for Greece – Federal Government’s duty to provide information to Parliament ). In principle, the Rules on Document Security are a suitable means for striking a balance between the Government’s interest in confidentiality and Parliament’s interest in obtaining information (cf. BVerfGE 67, 100 <135>; 70, 324 <359>; 124, 78 <124 f.>; 130, 318 <362>; 131, 152 <208>; 137, 185 <264 para. 199>; 143, 101 <143 para. 139>; 146, 1 <43 f. para. 97>; 147, 50 <131 para. 207>).

7. If the Federal Government intends not to provide some or all of the information required by Art. 23(2) second sentence GG on the grounds of the limitations set out above, it must notify the Bundestag of its decision to invoke these limitations and must set out the reasons why the Government is refraining from notifying the Bundestag comprehensively and as early as possible. This requirement to state reasons ensures that the members of the Bundestag become aware of the reasons for the refusal to provide information or for classifying the information provided, allowing them to analyse these reasons and to assess the prospects of recourse to the Federal Constitutional Court (cf. regarding the parliamentary right to ask questions and to obtain information in general, BVerfGE 124, 161 <193>; 137, 185 <244 para. 156>; 147, 50 <149 para. 253>). Such reasons are also indispensable for (constitutional) court review of the refusal and thereby serve to prevent a situation in which the review process would largely be at the discretion of the Federal Government (cf. regarding the parliamentary right to ask questions and to obtain information in general, BVerfGE 124, 78 <128>; 147, 50 <150 para. 256>).

If there are indications that the Federal Government possesses a document that falls within the scope of the duty to provide information under Art. 23(2) second sentence GG, it is incumbent upon the Federal Government to demonstrate in a plausible manner why the document does not relate to a matter concerning the European Union, or to demonstrate that the document cannot be shared on constitutional grounds of such weight that they preclude the Federal Government from fulfilling its duty to provide information under Art. 23(2) second sentence GG. The Federal Government must demonstrate in a substantiated manner – rather than merely through boilerplate statements – that the requirements for refusing to provide the information in question are met. A blanket statement that merely lists potential grounds for refusal is not sufficient.

Furnishing reasons once the Organstreit proceedings have been initiated is insufficient under Art. 23(2) second sentence GG as it defeats the purpose pursued by the requirement to state reasons, which is to ensure that the members of the Bundestag become aware of the reasons for the refusal to provide information, allowing them to assess the prospects of recourse to the Federal Constitutional Court (cf. regarding the parliamentary right to ask questions and to obtain information BVerfGE 124, 78 <147>; 146, 1 <49 para. 108>; 147, 50 <150 para. 259>).

II.

Based on these standards, the application lodged by applicant no. I and point 3 of the application lodged by applicant no. II are well-founded. The respondent violated Art. 23(2) second sentence GG by failing to notify the German Bundestag comprehensively and as early as possible of the draft of the crisis management concept, which had been available to the respondent no later than 30 April 2015, and thus violated its duty to provide information (see 1. below). The respondent also violated the Bundestag ’s rights by failing to plausibly demonstrate that the letter from Turkish Prime Minister Davutoǧlu of 23 September 2015 did not fall within the scope of the duty to provide information under Art. 23(2) second sentence GG (see 2. below).

1. With regard to the crisis management concept, the respondent violated the Bundestag ’s rights under Art. 23(2) second sentence GG by refusing to share the draft text, which was available to the Government on 30 April 2015, with Parliament.

a) The crisis management concept relates to a “matter concerning the European Union” within the meaning of Art. 23(2) GG. It formed the basis of the multinational EUNAVFOR MED Operation SOPHIA (cf. recital 5 and Art. 2(1) of Decision <CFSP> 2015/778) – a measure of the Common Security and Defence Policy of the European Union. Thus, its contents concerned a policy area laid down in the Treaties.

Operations conducted in the context of the Common Security and Defence Policy are governed by Art. 43 f. TEU. EUNAVFOR MED Operation SOPHIA was part of the European Agenda on Migration and thus part of a comprehensive European approach (cf. BTDrucks 18/6544, p. 4; Art. 3(2), Art. 21(3) subpara. 2 TEU). EU institutions prepared the crisis management concept, which directly served to realise EU objectives (cf. Art. 3(2) TEU). The concept’s implementation likewise fell to the EU (cf. Art. 1(1) of Decision <CFSP> 2015/778): The definition of the area of operation was approved by the Council (cf. Art. 1(2) of Decision <CFSP> 2015/778), and the decision to launch the operation was also adopted by the Council (cf. Art. 5 of Decision <CFSP> 2015/778). Under the responsibility of the Council and of the High Representative, the Political and Security Committee exercised the political control and strategic direction of the operation (cf. Art. 6(1) first sentence of Decision <CFSP> 2015/778). The Chairman of the EU Military Committee was responsible for military direction (cf. Art. 7(1) of Decision <CFSP> 2015/778). The High Representative ensured the implementation of the decision and its consistency with the EU’s external actions as a whole (cf. Art. 8(1) of Decision <CFSP> 2015/778). Cooperation with the relevant national authorities was ensured (cf. Art. 8(3) first sentence of Decision <CFSP> 2015/778). The operation was limited to EU Member States, though third states could be invited to participate (cf. Art. 9(1) of Decision <CFSP> 2015/778).

The application of Art. 23(2) second sentence GG is not precluded by the fact that EU defence policy is conducted on a voluntary basis – apart from the (vague) commitment to gradually improving military capabilities (Art. 42(3) subpara. 2 first sentence TEU) – and that Member States cannot be (legally) compelled to participate in a military operation ([…]). Even though the crisis management concept and the operation envisaged therein were based on the voluntary commitment of participating Member States, this does not call into question that the operation was a matter concerning the European Union. Matters concerning the European Union are not limited to law-making acts, but also cover other measures. Also, the participating Member States are bound by the crisis management concept (in the form of a commitment made by these Member States). The Council Decision commits the Member States in the positions they adopt and in the conduct of their activity (cf. Art. 28(2) TEU; cf. also Art. 31(1) subpara. 2 first to third sentence TEU).

In participating in the crisis management operation (cf. BTDrucks 18/6544, p. 1; 18/7689, p. 1), the Federal Government pursued the goals of rescuing persons in distress at sea and fighting traffickers, as well as the goals of closer cooperation with countries of origin and transit countries and of strengthening internal European solidarity and responsibility with regard to the reception of refugees (cf. BTDrucks 18/6544, p. 4). Moreover, the Federal Government wanted to achieve greater stability in the Southern neighbourhood of the EU (cf. BTDrucks 18/8878, p. 6; 18/12491, p. 7). Given the significance of these goals at international level and for society as a whole, the Bundestag must be enabled to address these issues – including and especially through public debates – and to examine the necessity and scope of the envisaged measures (cf. also BVerfGE 131, 152 <220>).

b) The Federal Government failed to notify the Bundestag comprehensively and as early as possible with regard to the crisis management concept and thus violated parliamentary information rights under Art. 23(2) second sentence GG.

aa) Under Art. 23(2) second sentence GG, the Federal Government was required to provide the Bundestag with information on the concept as soon as it reached the Government’s sphere of influence. Given the great constitutional and political significance of the project, strict requirements applied regarding the quality, quantity, timeliness and usability of the information on the negotiations. The Federal Government was obliged to forward official documents and materials drawn up by institutions, bodies, offices and agencies of the European Union and other Member States to the Bundestag without delay (cf. BVerfGE 131, 152 <220>) and to notify the Bundestag of any negotiations even in their early stages (cf. BVerfGE 131, 152 <225 f.>; 158, 51 <79 para. 87> – Financial aid for Greece – Federal Government’s duty to provide information to Parliamen t).

The Federal Government played a significant role in the development of the crisis management concept and would therefore have been able to notify the Bundestag at an early stage. In particular, it can be assumed that the High Representative already forwarded the draft to the Federal Government on 30 April 2015 at the latest, as the applicants asserted in their uncontested submissions. The final draft was available to the Federal Government by no later than 6 May 2015, when the Committee of Permanent Representatives of the Governments of the Member States met. Still, the Federal Government only forwarded the relevant documents to the Bundestag on 21 May 2015, and thus after the Council of the European Union adopted its decision on 18 May 2015, thereby preventing the Bundestag from influencing the crisis management concept.

The violation of the duty to provide notification continued after 21 May 2015 because from that date, access to the crisis management concept was only granted to the members of the Foreign Affairs Committee, the Defence Committee and the European Union Affairs Committee, and only in the Bundestag ’s Document Security Office. It is true that access was later also granted to members of the Human Rights and Humanitarian Aid Committee, the Internal Affairs Committee, the Legal Affairs and Consumer Protection Committee and the Economic Cooperation and Development Committee. However, the document was not made available to all members of the Bundestag . Rather, on 24 June 2015, following a written question from member of the Bundestag Dr. Schmidt (BÜNDNIS 90/DIE GRÜNEN ), the Foreign Office’s Minister of State for Europe stated that the respondent had forwarded the crisis management concept to the responsible committee as well as to the other parliamentary committees participating in the deliberations after the Council of Foreign Relations had adopted it, while emphasising that this did not amount to a recognition of a legal duty to do so. He added that the Act on Cooperation Between the Federal Government and the German Bundestag in Matters Concerning the European Union did not give rise to an obligation on the part of the Federal Government to forward said concept.

The sharing of the crisis management concept in classified form and the restriction of only allowing it to be accessed in the Bundestag Document Security Office also violate Art. 23(2) second sentence GG. They adversely affect the public nature of Parliament.

bb) It is not ascertainable that there were any exceptional reasons precluding the sharing of the crisis management concept with Parliament. The crisis management concept is not exclusively concerned with the Federal Government’s internal opinion-forming process, and the Government can therefore not claim that the concept is part of its core of autonomous decision-making.

cc) There is no need to decide here whether, for reasons of confidentiality, the crisis management concept could have been made available to the Bundestag in classified form only. Even if a classified document had been shared, it should at the very least have been shared with the entire Bundestag . Moreover, the respondent did not invoke any need for confidentiality, making it impossible to assess whether there may have been sound reasons for classifying the document. Such reasons could have justified placing the crisis management concept under the restricted access of the Bundestag ’s Document Security Office, whereas they could not have justified keeping information from the Bundestag as a whole.

2. The Federal Government also violated the Bundestag ’s rights under Art. 23(2) second sentence GG with regard to the letter from Turkish Prime Minster Davutoǧlu of 23 September 2015, since it failed to plausibly demonstrate that the letter did not relate to matters concerning the European Union or that there were constitutional reasons for not forwarding it to the Bundestag .

a) There were specific indications that the letter from Turkish Prime Minster Davutoǧlu of 23 September 2015 falls within the scope of the duty to provide notification under Art. 23(2) second sentence GG. According to the press coverage at the time, the letter was addressed to all 28 heads of state and government of the European Union and concerned Turkey’s cooperation with the European Union in asylum and migration matters. This would have made it a matter concerning the European Union within the meaning of Art. 23(2) first sentence GG.

The letter was also reported to have made direct reference to the EU-Turkey Joint Action Plan to overcome the refugee crisis adopted at the summit of 29 November 2015, which is also a matter concerning the European Union. This action plan provided for the control of migration flows and financial assistance – in a not inconsiderable amount – provided to Turkey by the EU. Moreover, the action plan served to work towards agreement regarding a revival of Turkey’s accession process and a liberalisation of visa requirements for Turkish citizens. These matters have a specific connection to the EU’s integration agenda (Art. 77 ff. TFEU).

In light of this, it would have been incumbent upon the Federal Government to give plausible reasons why it was not obliged to provide notification under Art. 23(2) second sentence GG in this case. The Government failed to give such reasons. It is true that the Federal Chancellery stated on 16 October 2015 that – insofar as the letter from Prime Minister Davutoǧlu addressed cooperation with the EU in asylum and migration matters at all – this information had been shared with the Bundestag in the context of the usual and continual notification provided to the Bundestag in matters concerning the European Union. Ultimately, the Federal Government did not say whether the letter did address cooperation with the EU in asylum and migration matters.

b) Moreover, the Federal Government did not plausibly demonstrate that constitutional reasons precluded the forwarding of the document. It merely issued a general statement that the document in question was a letter from a head of government personally addressed to the Federal Chancellor and that, as such, it was generally exempt from the duty to provide notification given that lifting the confidentiality of such correspondence would have considerable adverse effects on the proper functioning of the Federal Government. It is doubtful whether the letter would also have enjoyed special confidentiality protection if it had not been solely addressed to the Federal Chancellor, but to all EU heads of state and government. It is also not evident that the letter contained confidential discussions on negotiating positions. The mere statement that it was a personal letter from the Turkish Prime Minister is insufficient.